TX: Observed speeding justified stop although pre-Jones GPS also showed def speeding

A tracking device was put on defendant’s vehicle via a court order under a statute that required only reasonable suspicion. Jones came later and required probable cause. Nevertheless, defendant’s speeding stop was justified by the intervening circumstance of the police seeing him speed. “So long as the ‘circumstance’ ‘intervenes’ between the inception of the primary illegality and the later discovery of evidence that is alleged to be ‘fruit of the poisonous tree,’ we hold that a reviewing court may appropriately regard it as an ‘intervening circumstance’ factor in the attenuation-of-taint analysis.” The police conduct was not flagrant. [This contorted path was required to be followed because Texas does not recognize the good faith exception to the exclusionary rule by statute.] State v. Jackson, 2015 Tex. Crim. App. LEXIS 756 (July 1, 2015) (concur; dissent):

Moreover, the SPA is correct that, given such an intervening circumstance, Mazuca dictates that a reviewing court should emphasize the third Brown factor, which asks whether the police purposefully and flagrantly disregarded Appellee’s Fourth Amendment rights. 375 S.W.3d at 306-07. The court of appeals conceded that there was no flagrant police misconduct. Jackson, 435 S.W.3d at 830. We agree. At the time Investigator Sides obtained the court order to install the GPS tracking device on Appellee’s car, the Supreme Court had not yet declared that the installation and monitoring of such a device constitutes a search for Fourth Amendment purposes. A Texas statute expressly permitted peace officers to install and use such devices upon sworn application to a district judge providing reasonable suspicion of criminal activity for which the device will likely produce material information. Tex. Code Crim. Proc. art. 18.21, § 14(a) & (c). Sides executed a sworn application pursuant to this statutory provision that met all of the qualifications for the issuance of a court order, and the judge of the 32nd Judicial District Court issued it. Nothing in the record suggests that Sides had any inkling, before Jones, that adhering to the statutory scheme would not suffice to render installation and use of the GPS tracking device in all things legal. He had no particular reason to believe or suspect that the statutory criteria of “reasonable suspicion” would prove to be (because a “search” for Fourth Amendment purposes ordinarily requires more) constitutionally deficient. Thus, the primary illegality in this case was not the product of a flagrant disregard of Appellee’s constitutional rights. There was no evidence Sides harbored any such intent.

It is undeniable that Sides’s use of the GPS tracking device was “purposeful,” in the sense that he expressly hoped to obtain evidence in his narcotics investigation against Appellee. But he did not knowingly violate Appellee’s constitutional rights in that pursuit. He also perpetrated no further constitutional violation in conducting his investigation. Thus, Sides’s purposefulness in stopping Appellee for speeding did nothing to exacerbate the initial—inadvertent—constitutional breach. Law enforcement officers conducting the same narcotics investigation in the absence of an illegal GPS tracking device would have been entitled to follow Appellee’s car for as long as it took to observe him commit a traffic offense and conduct a similar stop. The parties have agreed and the record supports the proposition that, once Appellee was stopped, he voluntarily consented and confessed. Neither the consent nor the confession was the result of any incremental illegality beyond the non-flagrant primary illegality of installing and monitoring the GPS tracking device in the absence of a warrant obtained on the basis of probable cause. Simply put, Sides never operated beyond the bounds of what he reasonably believed to be perfectly acceptable, even routine, police conduct.